Ski Area Operator Liability in Oregon

Oregon ski laws were designed to protect ski area operators from liability for accidents suffered by skiers on resort property. See Jessup v. Mt. Bachelor, Inc., 101 Or App 370 (1990). Legislatures in ski states, all of which have similar liability-limiting laws, are lobbied heavily by the industry, and also fear that if liability was not limited the courts would be flooded with cases because of the frequency of ski accidents. Because skiers in Oregon accept and assume the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary, in most cases, if two skiers collide the ski area operator will not be liable to either skier.

Comparative Fault and Employee Negligence

While it may sound like the ski area operators have an impenetrable shield from liability; that is not the case. Imagine this: A skier is taking a lesson from a ski instructor employed by the ski area operator. During the skier’s lesson, another instructor who is employed by the operator crashes into her. That is what happened in Nolan v. Mt. Bachelor, Inc., 115 Or App 27 (1992). The court drew the following distinction: If two skiers collide, the ski area operator is not liable for either skier’s negligence because Oregon statutes shield the operator; but if the accident was caused by an employee’s negligence, the statutory shield is removed.

The court’s ruling was based on the “comparative fault” rules announced in the previous Jessup v. Mt. Bachelor case. Comparative fault is used by courts to establish how responsible each party is in an accident on a percentage basis.

Auto accidents provide a good illustration of how the rule works.

In Accident 1, Driver A pulls into a four-way intersection after her light turns green and doesn’t see Driver B coming from her left. Driver B runs her red light and runs into the side of Driver A’s car. Driver A drove lawfully and is 0% at fault. Driver B drove negligently and is 100% at fault, entirely responsible for Driver A’s injuries. Driver A receives full damages.

In Accident 2, assume the same facts as above except Driver A is not wearing her seatbelt. In this case, some of the injuries sustained by Driver A were caused by the collision, but some were likely caused by not wearing a seatbelt as required by law. A court would assign a percentage value to Driver A’s fault, perhaps 20%, reducing Driver B’s fault to 80%. Driver A’s damages award would be reduced by 20%.

Employers can be held liable for their employee’s actions if an employee negligently causes injury to a customer. This stems from a legal doctrine called respondeat superior (translation from Latin: let the master answer). That theory allows an injured party to sue both the employee and employer if the employee caused injury while acting in the scope of their employment. Oregon law follows the Restatement (Second) of Torts § 228 in defining the acting in the scope of employment:

The conduct is of the kind the employee is employed to perform;

The conduct occurs within authorized time and space limits, i.e., during scheduled work hours and in a location the employee was expected to be; and

The conduct was motivated in some part by a purpose of serving the employer

See Gossett v. Simonson, 411 P.2d 277 (Or. 1966).

Hence in the ski context, a ski instructor who negligently crashes into a skier during his work hours creates liability for both himself and his employer, the ski area operator.

Comparative fault could clearly be present in a collision between a skier and ski instructor. If both are skiing without due care and a collision occurs, then despite the inherent dangers of skiing, if there was some negligence on the part of the ski area operator (through its employee), “the questions of liability and apportionment of fault are for the trier of fact” (the jury).

Snow mobiles driven by resort employees are another common source of injuries to skiers. In the Colorado case, Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007), a thirteen-year-old girl died from her injuries after colliding with a snowmobile being driven up the slop by a ski area employee. The two met at a blind knoll while both traveling at speed. While the employee insisted he had waited to check for skiers before ascending the knoll and that the snowmobile’s siren was blaring, witness testimony contradicted those statements. The court agreed those were triable issues of fact, rendering the ski area operator potentially liable for wrongful death.

Cases of assault or battery by an employee of the ski area operator open up further legal theories under which the victim can recover from the employer under respondeat superior/vicarious liability. Even though assault and battery are clearly not within the scope of a resort employee’s employment, the employer has a duty to invitees to avoid employing persons susceptible to violence. One theory is negligent hiring, meaning that an employer failed to exercise due care in hiring because of the employee’s violent proclivities. A second theory is negligent retention. Often under that theory an employer has failed to fire an employee about whom it had previously received reports of assault or battery.

Therefore, if you think you have been physically threatened or harmed by an employee of a ski resort, you probably have a claim against the resort.

For a discussion of the elements of employer liability, see the Utah case, Moradian v. Deer Valley Resort Co., 2:10-cv-00615-DN (D. Utah 2012). For an explanation of “invitees,” see the page on this site concerning RESCUE.

Have You Been the Victim of Ski Area Operator Liability in Oregon?

Call Richard Rizk, Attorney at Law at (503) 245-5677 for a free consultation.

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